The issue was that on a Topix community forum for Evansville, Indiana, someone claimed that a list of police staff had been "leaked." Some trolls in the comments spoke out against the police -- and one certainly went too far, suggesting that a certain officer's house was going to be shot up. Rather than investigating the issue, the police got some info on where the comment came from (or, rather, where they thought the comment came from) and sent the SWAT team and a TV news crew to the home of Ira and Louise Milan -- whose front door was open. Now, they could have rang the doorbell and spoken to them. But, instead, they broke down the screen door, broke the front window, and tossed a flashbang into the living room.

And... all for naught. While they seized a bunch of computer equipment, it turns out that no one in the house had anything to do with anything. Something they could have ascertained by, you know, talking to people in the house. The police are defending their massive overreaction because.... the internet!!!!

“This is a little more difficult that a traditional crime scene, because we’re dealing with the Internet. They definitely weren’t expecting (a SWAT team at the door). The reason we did that is the threats were specific enough, and the potential for danger was there.

“This is a big deal to us,” Cullum said. “This may be just somebody who was online just talking stupid. What I would suggest to anybody who visits websites like that is that their comments can be taken literally.”

Yes, so because the police might overreact, you should watch what you say online. And also always be ready for a SWAT team to show up, in case a stranger you know nothing about says something bad online. After all, it's "the internet."

"The issue that we're struggling with quite a bit is something I've kind of talked about before, which is how do you properly value people's contributions to a community?” he said, reflecting on a discussion he had with Develop last year.

Last year Newell told Develop that “the games industry has this broken model, which is one price for everyone. That’s actually a bug, and it’s something that we want to solve through our philosophy of how we create entertainment products".

[....]

“An example is – and this is something as an industry we should be doing better – is charging customers based on how much fun they are to play with.

“So, in practice, a really likable person in our community should get Dota 2 for free, because of past behaviour in Team Fortress 2. Now, a real jerk that annoys everyone, they can still play, but a game is full price and they have to pay an extra hundred dollars if they want voice.”

And the latest news is that they are going beyond this crazy idea into seeing what's actually possible:

“We're trying to figure out ways so that people who are more valuable to everybody else [are] recognized and accommodated. We all know people where if they're playing we want to play, and there are other people where if they're playing we would [rather] be on the other side of the planet.

"It's just a question of coming up with mechanisms that recognize and reward people who are doing things that are valuable to other groups of people."

I'm curious as to how exactly this would work. I think there are lots of community-based properties would love to be able to charge trolls more. However, this could be really, really difficult to work in practice, and create some problems, depending on what the overall goals are. It would be nice, of course, if you could come up with a perfect system to get rid of trolls, but distinguishing true trolls can often be much more difficult in practice than in theory.

from the conduct-is-actionable,-it-seems dept

US Copyright Group was the first of the US-based copyright trolls, suing thousands of individuals in a single lawsuit, trying to get them to pay up (rather than going through an actual trial). US Copyright Group is really a front for a DC law firm, Dunlapp, Grubb & Weaver. One of its very first "big" lawsuits was against about 5,000 people for supposedly partaking in the sharing of Uwe Boll's Far Cry. Of course, as we had noted, there was a pretty big problem in the Far Cry lawsuit, in that the US copyright registration was filed too late for many of the accusations of infringement.

Partly on the basis of the registration problems, Dmitriy Shirokov (with the law firm Booth Sweet) sued US Copyright Group, DGW and its key lawyers for fraud, extortion and conspiracy back in 2010. DGW shot back angrily, claiming that it's perfectly fine for for lawyers to lie to the court, if it's part of the course of litigation:

"Although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable,"

Of course, the threats and extortion weren't actually "during the course of litigation." DGW also claimed that there was no "harm" for Shirokov, because he didn't settle, and thus hadn't paid up. DGW then went even further, asking for sanctions against Shirokov and Booth Sweet, claiming that it was actually them who were filing lawsuits for "improper purpose."

The court has now ruled in response to DGW's motion to dismiss, and it seems pretty clear that the judge is not impressed by DGW at all. The motion to dismiss was rejected and the class action lawsuit against the company moves forward.

Judge Boal recommended that the motion for dismissal be denied in significant part. The defendants had argued that Mr. Shirokov was not entitled to sue them at all, since he wised up before paying their demands, and his claimed injuries were out-of-pocket costs of investigating the threats. They claimed that the Noerr-Pennington privilege, an antitrust doctrine, prevented any liability. And they argued that lawyers and their clients have absolute immunity for even intentional torts, or in DGW’s words: “although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable.” Just think about that one for a minute.

Judge Boal thoroughly debunked each of those claims. The fees Mr. Shirokov incurred in investigating the trumped-up copyright claims constitute an injury-in-fact that gives him standing to sue. The Massachusetts litigation privilege does not apply to threats of litigation that are not seriously contemplated in good faith. And the Noerr-Pennington antitrust doctrine did not apply outside of antitrust law, and even the First Amendment right to petition isn’t an absolute protection for litigation threats.

It's important to note that, in this case, it's the specific issue of the non-registered copyrights that is key. That is, the lawsuit isn't about the general practice of copyright trolling -- but the fact that it was done using claims and demands that were not true (e.g., the statutory damages if found guilty of sharing, even though such statutory damages were not available for a work that hadn't been registered).

Along those lines, the court didn't completely side with Shirokov, saying that some of the racketeering and fraud charges should be dismissed. But, large parts of the lawsuit survive and will move forward -- which doesn't seem like a good thing for DGW or US Copyright Group. Perhaps, next time, they'll check the copyright registration before filing suit.

from the in-case-you're-wondering dept

Lots of people wonder what internet trolls are thinking in trying to get their kicks out of being as obnoxious as possible online... and some folks at the BBC apparently were able to track down and confront an individual who had a reputation for highly obnoxious trolling -- writing mean messages on Facebook tribute pages for people who were murdered. I'm not a huge fan of "confrontation" journalism, which feels pretty manufactured, but there is something amusing about watching the guy try to ignore the issue for a while, before realizing he can't resist and he has to respond. It's kind of a form of reverse trolling, where he fell for it...

When asked if he thinks about the people he's hurting online he responds, "Yeah, I think fuck 'em." Then he goes on to talk about how it's nothing illegal, and that Facebook is an open forum so he can say whatever he wants. The BBC points out that some of what he's saying may be illegal (under UK law), and he brushes it off, apparently responding to an earlier point that said someone got nine weeks in jail for similar statements, by saying "nine weeks, what's that?"

It's not the most enlightening of interviews, but given the general interest some people have in trolling, I figured some folks might find it interesting.

from the perhaps-not...-but... dept

There was a recent post on the Patent Examiner blog about yet another patent troll who's been suing a ton of companies with a variety of patents. Among recent lawsuits there was one against General Motors, Ford, Mercedes-Benz, BMW of North America, Rolls-Royce, Hyundai, KIA and ATX Group for using GPS systems to track cars, and two more against AT&T, Verizon, Sprint Nextel, MetroPCS, T-Mobile and others over patents 7,852,995 and 7,860,225, titled “Method and apparatus for selectively providing messages in telecommunications systems."

As with many troll patents, the troll company has zero relationship with the actual inventor on the patents. The author of the article, Gregory Thomas, tracked down the inventor on those last two patents, one Jonathan Streitzel, an entrepreneur and inventor. When asked about these lawsuits, Streitzel pointed out:

“I don’t know the details, I just invent shit.”

And, to be clear, this is a perfectly reasonable response. At some point he sold off the patents. Neither Streitzel nor his attorney are willing to talk about the details, since apparently there was some sort of "confidentiality agreement," which is all too standard in selling patents to trolling operations these days. But, at some point, should the inventors at least take on some responsibility if their patents are being used to shake down companies and stifle innovation?

There's obviously no legal responsibility. But it does make me wonder if there's an ethical issue. We hear all the time from entrepreneurs who go out and patent things because they feel they have to: either some of their investors insist that they need patents or they do so to start stockpiling a defensive patent portfolio in case some practicing entity hits them with a patent lawsuit. They all seem to admit that it's a "necessary evil," and say that they'll never assert those patents themselves. But... at some point, the patents get sold. Often a company fails and the patents are a remaining asset. Or it just becomes too lucrative to not sell the patents.

And, while it's not clear if that happened in the situation above with Strietzel, we hear all the time about entrepreneurs who unwillingly got patents, only to later discover those patents were being used in trolling suits. Should those inventors speak up?

from the setting-the-record-straight dept

Julian Sanchez points us to the latest in a series of ridiculously uninformed editorials whining about the evils of anonymity online. This one is by Gayle Falkenthal in the Washington Times. The premise, apparently, is that anonymity only made sense in the past, when the internet was "immature."

When the Internet was new, its nature bred the protective philosophy of embracing anonymity as a counterweight to the potential for sacrificing some of your personal privacy to participate.

The Internet has matured. Anonymity has become counterproductive and even damaging. If you’re willing to stand up and render a public opinion, you should reveal your identity. The time has come to limit the ability of people to remain anonymous.

That first sentence makes no sense. Anonymity didn't just spring up because of the internet. And it had nothing to do with being a "counterweight to the potential for sacrificing some of your personal privacy to participate." That's someone making up history. As for anonymity being counterproductive? I think we can go with a big, fat [citation needed] and move on. And, by moving on, I mean moving on to more broad brush stereotypes that have little basis in reality:

Early adopters were iconoclasts, rule breakers and social misfits. Nerds targeted in the real world by bullies could push back without facing any personal risk. Anonymity plus anger bred boldness in the form of bad behavior. And so, the Troll was born.

This bugs me, because it's been discussed time and time again. We've pointed out that some of our most trollish commenters are not anonymous, while some of our best commenters are anonymous. Can trollish commenters be anonymous? Yes. Does that mean anonymity is at fault? No.

Anonymous commenting should become a thing of the past. Anonymity allows trolls to breed. Let’s admit it, chalk it up to being a good idea that failed, and end the practice.

It's only failed if you have a bad community, don't engage with your community and let the trolls take over. In our experience, anonymity has made it easier for lots of people to counteract trollish comments, provide facts and data, and to keep our comments vibrant and interesting.

Those arguing for anonymity claim that free speech will be squelched because individuals might fear reprisals at work or among friends and family when their personal opinions are made public. Some speech doesn’t deserve a forum. Anonymity creates real and lasting harm when people are hit with false accusations and name-calling attacks. There is no way to tell if a damning restaurant review is written by a competitor or disgruntled employee.

That's not an issue of anonymity. If people are hit with false accusations, there are defamation laws on the books to deal with it. If there's a damning restaurant review written by a competitor or a disgruntled employee, there are mechanisms to deal with that (such as lots more good reviews from actual customers).

When our nation was being formed, Thomas Paine and Benjamin Franklin stood behind their incendiary, treasonous views in public even at the risk of being hanged for what they said.

I was about to point out that Thomas Paine's big contribution to the public discourse was Common Sense which was published anonymously, but I skipped ahead to the end where Falkenthal tells us that herself:

The First Amendment guarantees freedom of speech, but not anonymity. If you want to be anonymous, create your own blog and become the modern version of a Colonial pamphleteer. Some high quality pamphlets were written anonymously, like Thomas Paine’s Common Sense, but most went into the trashcan of history. Just like those long forgotten pamphleteers, modern anonymous blogsites full of insults and rants will not long be remembered.

So, uh, wait. Which is it? Is it that Thomas Paine stood behind his incendiary treasonous views, or that he published them anonymously. It appears that even Falkenthal is confused. Furthermore, the last two sentences appears to undermine her entire argument. If these anonymous comments are just going into the trashcan of history and "will not long be remembered," then why do we need to ban them?

It seems like her argument is that anonymous speech is evil because it's mean and doubly horrible because no one pays attention to it. Honestly, her column -- with her name on it -- seems a lot more troll-like than an awful lot of "anonymous" comments we see these days.

from the 4chan-/b/-just-got-worried dept

We've written a few times in the past about various attempts to outlaw "being a jerk" online. These efforts are often well meaning, but pretty dangerous from the standpoint of any sort of belief in free speech. Being a jerk is silly and obnoxious, but it shouldn't be illegal. However, as a whole bunch of you have sent in, over in the UK, they feel differently. An internet troll who mocked a variety of dead people to their grieving friends and families has been sentenced to jail for "sending malicious communications." He got 18 weeks as the judge said, "You have caused untold distress to already grieving friends and family."

This is troubling on any number of levels. Most specifically, it's exceptionally worrisome when you base punishment on how someone responds to speech made by someone else. Yes, the comments were obnoxious and totally classless and uncalled for. But, whether or not they cause "distress" should not be the basis for judging whether or not they're legal. There are lots of things that someone can say that would cause distress, but that shouldn't make it illegal to say them. This certainly opens up a can of worms over just what kind of speech is so distressing that it gets you jail time. Either way, if you're from the UK, be careful what you post in our comments going forward. It apparently could get you jail time.

from the will-it-work? dept

That Anonymous Coward alerts us to a recently filed "motion to quash" (pdf) one of the many subpoenas that copyright troll lawyer John Steele has been trying to get courts to issue. After running into trouble convincing judges in his home state of Illinois, it appears that Steele has branched out. This latest involves a lawsuit filed in the Northern District of California, where (unfortunately) Magistrate Judge Howard Lloyd went ahead and allowed early discovery and the issuance of subpoenas. While this is standard in many cases, more and more courts have begun realizing it is not appropriate in these copyright trolling cases where the sole purpose is to identify users to try to pressure them into settling.

While there have certainly been many motions to quash, this one made some particularly good points that seemed worth highlighting. First, it explains that IP addresses are not like fingerprints and do not identify a user (my emphasis):

The Third Degree Films complaint and ex parte request for expedited discovery form yet another in a wave of suits in which copyright infringement plaintiffs seek to “tag” a defendant based solely on an IP address. However, an IP address is not equivalent to a person or entity. It is not a fingerprint or DNA evidence – indeed, far from it. In a remarkably similar case in which an adult entertainment content producer also sought expedited discovery to learn the identity of persons associated with IP addresses, United States District Judge Harold Baker of the Central District of Illinois denied a motion for expedited discovery and reconsideration, holding that, “IP subscribers are not necessarily copyright infringers…The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.” Order of Apr. 29, 2011, VPR Internationale v. DOES 1-1017, No. 2:11-cv-02068 (Central District of Illinois) (Judge Harold A. Baker) [hereinafter VPR Internationale Order], attached hereto as Exhibit C. The point so aptly made by Judge Baker is that there may or may not be a correlation between the individual subscriber, the IP address, and the infringing activity. Id. The risk of false identification by ISPs based on internet protocol addresses is vividly illustrated by Judge Baker when he describes a raid by federal agents on a home allegedly linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP (in the same fashion as Plaintiff seeks to extract such information from Wide Open West.) After the raid revealed no pornography on the family computers, federal agents eventually learned they raided the wrong home. The downloads of pornographic material were traced to a neighbor who had used multiple IP subscribers’ Wi-Fi connections. Id. This risk of false identification and false accusations through disclosure of identities of internet subscribers is also presented here. Given the nature of the allegations and the material in question, should this Court force Wide Open West to turn over the requested information, DOE No. 605 would suffer a reputational injury.

Separately, it notes that those using these tactics are using high pressure efforts to get people to pay up to settle:

If the mere act of having an internet address can link a subscriber to copyright infringement suits, internet subscribers such as DOE No. 605 will face untold reputational injury, harassment, and embarrassment. The reputational risk that Judge Baker found to be an undue burden is equally presented here: “[W]hether you’re guilty or not, you look like a suspect.” Id. at 3. Moreover, this case presents the same extortion risk that so concerned Judge Baker:

“Could expedited discovery be used to wrest quick settlements,
even from people who have done nothing wrong? The
embarrassment of public exposure might be too great, the legal
system too daunting and expensive, for some to ask whether VPR
has competent evidence to prove its case.”

Id. Discovery is not a game. Yet, plaintiffs in these types of cases use discovery to extort settlements from anonymous defendants who wish to avoid the embarrassment of being publicly associated with this type of allegation. Id. Such abuse of the discovery process cannot be allowed to continue.

From there, it argues that since an IP address does not identify the user, the subpoena itself is invalid:

Additionally, this subpoena should not have been issued in the first place because the information sought is not relevant to Plaintiff’s allegations. Implicit in the rule granting subpoena power is a requirement that the subpoena seeks relevant information. See Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998)(“the reach of a subpoena issued pursuant to [FED. R. CIV. P. 45] is subject to the general relevancy standard applicable to discovery under [FED. R. CIV. P. 26(b)(1)].”). The information linked to an IP address cannot give you the identity of the infringer. VPR Internationale Order, at 2. Because the infringer could have been anybody with a laptop passing within range of the router, the information sought by Plaintiff is not relevant to the allegations in any way. Id. Moreover, even if the information has some small amount of relevance to the claim—which it does not—discovery requests cannot be granted if the quantum of relevance is outweighed by the quantum of burden to the defendant. FED. R. CIV. P. 26(b)(2)(C)(iii). Plaintiff’s request fails that balancing test. Given that DOE No. 605 was only one of many persons who could have used the IP address in question, the quantum of relevance is miniscule at best. However, as discussed above, the burden to DOE No. 605 is severe. The lack of relevance on the one hand, measured against the severe burden of risking a significant reputational injury on the other, means that this subpoena fails the Rule 26 balancing test. Id. Plaintiff’s request for information is an unjustified fishing expedition that will cause reputational injury, prejudice, and undue burden to DOE No. 605 if allowed to proceed. Good cause exists to quash the subpoena served on Wide Open West to compel the disclosure of the name, address, telephone number and e-mail address of DOE No. 605."

Nice to see more people fighting back against obvious fishing expeditions. Hopefully more judges start realizing what these kinds of requests are really about.

from the watch-out-righthaven... dept

dwg points us to a fascinating ruling by CAFC in EON-NET LP v. FLAGSTAR BANCORP, in which CAFC (who generally sides with patent holders) not only went against a patent troll, but also actually smacked the lawyers down with fairly large Rule 11 sanctions for filing a bogus lawsuit, where the intent appeared to only be to get a company to pay up. This ruling could become an interesting precedent not just in patent cases, but potentially in copyright trolling cases as well. The court points out that Eon-Net had filed over 100 patent infringement lawsuits, following up each one quickly with an offer of settlement. In this particular case, it was clear that Flagstar did not infringe on the patents in question.

While the court found a variety of misconducts (including document destruction), where this ruling becomes potentially very damaging for all sorts of trolls -- both copyright and patent trolls alike -- is in the finding of "baseless litigation in bad faith." Part of the reasoning here:

In addition to finding that Eon-Net filed an objectively baseless infringement action, the district court also determined that Eon-Net filed the lawsuit in bad faith and for an improper purpose... In particular, the district court found that Eon-Net's case against Flagstar had "indicia of extortion" because it was part of Eon-Net's history of filing nearly identical patent infringement complaints against a plethora of diverse defendants, where Eon-Net followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation.

The record supports the district court's finding that Eon-Net acted in bad faith by exploiting the high cost to defend complex litigation to extract a nuisance value settlement from Flagstar. At the time that the district court made its exceptional case finding, Eon-Net and its related entities, Millennium and Glory, had filed over 100 lawsuits against a number of diverse defendants alleging infringement of one or more patents from the Patent Portfolio... Each complaint was followed by a "demand for a quick settlement at a price far lower than the cost of litigation, a demand to which most defendants apparently have agreed."... In this case, as with the other cases, Eon-Net offered to settle using a license fee schedule based on the defendant's annual sales: $25,000 for sales less than $3,000,000; $50,000 for sales between $3,000,000 and $20,000,000; and $75,000 for sales between $20,000,000 and $100,000,000. Rule 11 Sanctions Order, at 3—4.

Check out those bolded parts. Sound familiar?

The court notes that it's no surprise that most companies agree to settle. This is important, because we regularly hear from patent system supporters insisting that when companies settle, it's proof that the patents are valid. Yet, here, the court itself points out that's ridiculous:

In this case, Flagstar expended over $600,000 in attorney fees and costs to litigate this case through claim construction. Supplemental Order on Fees and Costs, at 8—11. Viewed against Eon-Net's $25,000 to $75,000 settlement offer range, it becomes apparent why the vast majority of those that Eon-Net accused of infringement chose to settle early in the litigation rather than expend the resources required to demonstrate to a court that the asserted patents are limited to processing information that originates from a hard copy document. Thus, those low settlement offers—less than ten percent of the cost that Flagstar expended to defend suit— effectively ensured that Eon-Net's baseless infringement allegations remained unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements.

Separately, the court clearly noted the "non-practicing entity" part of the business in pointing out that, "As a non-practicing entity, Eon-Net was generally immune to counterclaims for patent infringement, antitrust, or unfair competition because it did not engage in business activities that would potentially give rise to those claims."

In the end, the court agreed and allowed the district court's award of $141,984.70 for Rule 11 violations and another $489,150.48 in attorneys' fees. The law firms rushing around to file patent and copyright trolling lawsuits in the hopes of getting quick settlements may want to take notice.